Com. v. Williams, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARK C. WILLIAMS,
Appellant : No. 1842 EDA 2017
Appeal from the Judgment of Sentence April 11, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010705-2013
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 16, 2019
Mark C. Williams appeals from his judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after a jury found him guilty
of aggravated indecent assault,' unlawful contact with a minor,2 endangering
the welfare of children,3 indecent assault,4 and corruption of minors.5 Upon
careful review, we affirm.
We summarize the relevant facts and procedural history as follows.
E.B., Williams's great-niece, was born in December 1998. When she was
' 18 Pa.C.S.A. § 3125(a)(7).
2 18 Pa.C.S.A. § 6318(a)(1).
3 18 Pa.C.S.A. § 4304.
4 18 Pa.C.S.A. § 3126(a)(7).
5 18 Pa.C.S.A. § 6301.
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between three and six years old, she visited Williams multiple times at his job
at a religious school at 56th and Vine Street in Philadelphia. On one occasion,
E.B. wanted to tell Williams about her toy. Williams lifted E.B. onto his lap
and slid his hand under her jean dress. He proceeded to touch her vagina
through the outside of her underwear. When she told him, "my mom and dad
told me wasn't nobody supposed to touch me there," he told her it was okay.
N.T. Trial, 12/7/16, at 117. She proceeded to talk about her toy. As she did,
Williams put his hand inside her underwear where he touched the outside and
then the inside of E.B.'s vagina. Id. Williams touched E.B. in this way on two
or three occasions. E.B. did not report the incidents until 2013 when she told
her mother.
In 2006, M.Y., Williams's great-nephew, accused Williams of sexually
abusing him. At the time of the incident, Williams shared a bunk bed with
M.Y. In 2008, he pled no contest to indecent assault of a minor less than
thirteen years old. He was sentenced to two years' probation and he was
required to register as a sex offender.
In 2013, E.B. told her mother, E.,6 about the incidents with Williams;
E.B. was 14 at the time. E. testified that she was talking to her sister about
Williams and M.Y. when E.B. informed her of the touching. E. testified that
Williams had touched her too, starting when she was in first or second grade
and continuing until she was in fourth or fifth grade. Williams and E. were
6 E.B.'s mother shares initials with her daughter. We refer to her as E. to
avoid confusion.
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living together in a shared family house. E. testified that she would be on top
of Williams and he would touch her vagina through the outside of her panties.
Id. at 174.
On December 12, 2016, a jury found Williams guilty on all charges. The
trial court sentenced him to an aggregate term of nine to eighteen years'
imprisonment. The trial court denied post -sentence motions and Williams
timely filed a notice of appeal. The court ordered a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appea1.7
Williams raises the following issues for our review:
1. Whether the trial court abused its discretion by it rulings
granting the Commonwealth's Rule 404(b) motion regarding
Mr. [Williams's] alleged sexual assault against E. 15 to 20 years
earlier. . and prohibiting the defense from introducing the
.
evidence that the other persons who was the subject of the
Rule 404(b) motion, M.Y., had been charged with child sexual
abuse prior to the charges against the defendant, thereby
depriving Mr. Williams of his fundamental due process right to
a fair trial and to present a defense?
2. Whether Commonwealth counsel committed prosecutorial
misconduct in her closing argument by making several
improper expressions of opinion that invaded the province or
the jury -thereby resulting in violation of Mr. [Williams's] due
process right to a fair trial under the United States and
Pennsylvania Constitution?
3. Whether the trial court's sentence of 9 to 18 years was
manifestly unreasonable and therefore constituted an abuse of
discretion?
Brief of Appellant, at 2.
The trial judge was elected to this Court, thus, there was no trial court
opinion.
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Williams first claims that the trial court erred when it admitted evidence
that Williams touched E.'s vagina 15 to 20 years before the trial. He also
claims the court improperly refused to allow Williams to bring in evidence that
his accuser, M.Y., had also been accused of indecent prior to reporting
Williams.
"Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
its discretion." Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.
2002) (quoting Commonwealth v. Stallworth, 781 A.2d 110, 117 (Pa.
2001)). "An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias, prejudice, ill -will or
partiality, as shown by the evidence of record." Commonwealth v. Harris,
884 A.2d 920, 924 (Pa. Super. 2005).
Generally, evidence of prior bad acts is not admissible to prove a
person's character in order to show that the person acted in accordance with
that character on a particular occasion. Pa.R.E. 404(b)(1). However, such
evidence can be admitted to show "motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident." Pa.R.E.
404(b)(2). In criminal cases, the probative value of evidence of prior bad
acts, even when used for a proper purpose, must still outweigh its potential
for unfair prejudice. Id. "Unfair prejudice' means a tendency to suggest a
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decision on an improper basis or to divert the jury's attention away from its
duty of weighing the evidence impartially." Commonwealth v. Dillon, 925
A.2d 131, 141 (Pa. 2007) (quoting Pa.R.E. 403, Comment).
Here, the trial court permitted the prior bad acts evidence to show a
common plan or scheme. N.T. Trial, 12/7/16, at 235. To determine whether
the common plan or scheme exception applies, the trial court must assess the
similarities and circumstances of the two incidents to determine whether they
constitute a "signature." See Commonwealth v. Tyson, 119 A.3d 353, 364
(Pa. Super. 2015). The circumstances need not be identical, but there must
be a "logical connection between them." Commonwealth v. Ivey, 146 A.3d
241, 253 (Pa. Super. 2016). The court can look to factors such as age, race,
relationship, and the specific acts that are committed. See Commonwealth
v. Lukitsch, 680 A.2d 877 (Pa. Super. 1996).
In Commonwealth v. O'Brien, 836 A.2d 966 (Pa. Super. 2003), we
reversed a trial court's ruling excluding evidence of the defendant's prior
assault of two minor boys where the defendant was accused of sexually
assaulting a third minor boy. In O'Brien, we found a logical connection
because the victims were within the same age range, each boy's parents were
friends of the defendant, and each boy had similar personal characteristics.
Id. at 970.
In Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. 2010),
Aikens was accused of sexually abusing his biological daughter. We held that
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the trial court properly admitted evidence that Aikens had previously sexually
abused a different biological daughter as proof of his common scheme, plan,
or design because the "fact pattern involved in the two incidents was markedly
similar." Id. at 1185. We found a signature because both victims were
Aikens's daughters, he mimicked sexual intercourse to gratify himself, both
occurred at night after watching pornographic movies, and the sexual assaults
occurred in bed. Id. at 1185-86.
Here, the victims all had similar relationships with Williams, a
great-nephew, a niece, and a great-niece. All the acts consisted of touching
of the genitals without penile penetration. All victims were approximately the
same age when abused. We find these facts sufficiently similar for them to
be attributable to a common plan or scheme. Thus, the trial court did not err
when it allowed the Commonwealth to present the prior bad act evidence.
Pa.R.E. 404(b)(2).
Furthermore, the trial court did not abuse its discretion when it refused
to allow Williams to inform the jury that, before M.Y. accused Williams of
indecent assault, M.Y. had been accused of indecent assault. The court found
that the evidence was not relevant and likely to confuse the jury by creating
a "trial within a trial." N.T. Trial, 12/8/16, at 72-75, 226. Excluding evidence
that is irrelevant, confusing, or prejudicial is within the sound discretion of the
trial court and will not be disturbed lightly. Sprague v. Walter, 656 A.2d
890, 918 (Pa. Super. 1995). Furthermore, collateral estoppel prevents a
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defendant from raising an issue the court has dispensed with on a previous
occasion. See Commonwealth v. Holder, 805 A.2d 499, 502 (Pa. 2002).
After Williams pled no contest in 2008, a court found him guilty of sexually
abusing his great-nephew. If he wanted to contest the charge, he should have
done so in 2008. The trial court determined that M.Y.'s criminal history was
irrelevant and potentially confusing to the jury. The trial court did not abuse
its discretion in so finding.
Williams next argues that that the prosecutor committed prosecutorial
misconduct by giving her personal opinion on Williams's guilt.
With specific reference to a claim of prosecutorial misconduct in a
closing statement, it is well settled that '[i]n reviewing
prosecutorial remarks to determine their prejudicial quality,
comments cannot be viewed in isolation but, rather, must be
considered in the context in which they were made.' Our review
of prosecutorial remarks and an allegation of prosecutorial
misconduct requires us to evaluate whether a defendant received
a fair trial, not a perfect trial.
Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (citation
omitted). A prosecutor has reasonable latitude to use logical force and vigor
when presenting a case to the jury. Commonwealth v. Rayner, 153 A.3d
1049. Prosecutorial misconduct does not occur unless the effects of the
comments prejudice the jury "by forming in their minds a fixed bias and
hostility toward the defendant, thus impeding their ability to weigh the
evidence objectively and render a true verdict." Commonwealth v. Paddy,
800 A.2d 294, 316 (Pa. 2002). The prosecutor may not give personal opinions
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of the credibility of witnesses, but may still comment on their credibility.
Judy, 978 A.2d at 120.
Here, the prosecutor questioned the credibility of the Williams's
witnesses, who had opined at trial that Williams was a law-abiding citizen.
Part of Williams's closing argument reiterated that theory. In response, the
prosecutor argued,
to hear that those witnesses testified under oath that knowing that
this defendant was accused of sexually abusing his niece when
she was a child and they knew that he was a man that had already
pled no contest and was found guilty of similar allegations for
indecently assaulting his young nephew for his own personal
sexual gratification is somebody that they considered to be a law-
abiding member of the community is just as soul crushing to any
other person in this world[.]
N.T. Trial, 12/12/16, at 86. In context, the comment does not prejudice the
jury as to prevent Williams from receiving a fair trial. See Judy, 978 A.2d at
119. The prosecutor does not give an opinion of whether Williams is guilty of
the current crime; the prosecutor is highlighting Williams's previous conviction
for indecent assault and the fact that the character witnesses still considered
him law-abiding even knowing those facts. The prosecutor is permitted to
comment on the credibility of the character witnesses in such a fashion. See
id. at 120.
Williams's last appellate claim implicates the discretionary aspects of his
sentence. Such a challenge is not appealable as of right. Rather, an appellant
must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.
Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).
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Before we reach the merits of this issue, we must engage in a
four[ -]part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant's brief includes a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise statement raises
a substantial question that the sentence is appropriate under the
sentencing code. . [I]f the appeal satisfies each of these four
. .
requirements, we will then proceed to decide the substantive
merits of the case.
Id. at 1042-43, quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013).
Here, Williams filed a post -sentence motion for reconsideration of his
sentence raising excessive sentencing issues, followed by a timely notice of
appeal. In addition, he has included in his brief a concise statement of reasons
relied upon for appeal pursuant to Pa.R.A.P. 2119(f). Accordingly, we must
now determine whether Williams has raised a substantial question for our
review.
Williams claims that his aggregate sentence was excessive and
unreasonable, thus raising a substantial question. We disagree. This court
does not accept bald assertions of sentencing excessiveness.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).
Moreover, "[t]he imposition of consecutive, rather than concurrent, sentences
may raise a substantial question in only the most extreme circumstances."
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). We have
found such circumstances when a sentence is prima facie excessive based on
the criminal conduct involved. See Commonwealth v. Dodge, 77 A.3d
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1263, 1271 (Pa. Super. 2013) (finding virtual life sentence for theft -related
crimes excessive and raised substantial question).
Here, there is no facially excessive sentence. The jury convicted
Williams of the indecent assault of minor and related offenses. At trial, the
mother testified that Williams did the same thing to her when she was a child.
Furthermore, Williams had previously been found guilty of indecent assault of
another child, M.Y. A sentence of nine to eighteen years in prison is not on
its face excessive under these circumstances. Thus, Williams has not raised
a substantial question and we do not have jurisdiction to consider this claim.
See Colon, 102 A.3d at 1033.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 7/16/19
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